News Release ~ 08/15/2013

Nation’s Criminal Defense Bar Welcomes DOJ Effort to Ensure State and Local Compliance with Americans’ Sixth Amendment Right to Counsel

Washington, DC (August 15, 2013) – Fifty years after the Supreme Court’s landmark Sixth Amendment right to counsel decision in Gideon v. Wainwright (1963), indigent defense systems across the nation, including the federal defender system, are in crisis. Yesterday, in the case of Wilbur v. City of Mount Vernon, et al., one of a number of cases challenging systemic deficiencies in the delivery of indigent defense services across the nation, the Department of Justice, on behalf of the federal government, filed a Statement of Interest in the U.S. District Court for the Western District of Washington at Seattle. The Wilbur case concerns claims that the cities of Mount Vernon and Burlington violated misdemeanor defendants’ right to counsel. In its filing, the DOJ, while not taking a position on the merits of plaintiffs’ claims in this particular case, made very clear that “The United States has an interest in ensuring that all jurisdictions – federal, state, and local – are fulfilling their obligation under the Constitution to provide effective assistance of counsel to individuals facing criminal charges who cannot afford an attorney, as required by Gideon v. Wainwright, 372 U.S. 335 (1963).”

NACDL President Jerry J. Cox said: “Some have estimated that approximately 80% of accused persons in the United States must rely upon public defenders and court-appointed counsel to represent them. There can be no due process, no justice, no meaningful adversarial legal system if people accused of crimes are deprived of their Constitutional right to counsel. DOJ’s filing emphatically makes that point.” NACDL Executive Director Norman L. Reimer added, “It is gratifying to see the DOJ make its voice heard on one of the most critical issues facing the integrity of the American criminal justice system – the current crisis in indigent defense. NACDL has long supported greater DOJ involvement in ensuring state and local compliance with the Sixth Amendment right to counsel.”

In its filing, the DOJ weighed in on a variety of points, including:

“It is the position of the United States that it would be lawful and appropriate for the Court to enter injunctive relief if this litigation reveals systemic constitutional deficiencies in the Defendants’ provision of public defender services” (at 5);

“In crafting injunctive relief, the authority of the Court to appoint a monitor is well established….Appointment of an independent monitor is critical to implementing complex remedies to address systemic Constitutional violations.” (at 7);

“If the Court finds liability in this case, its remedy should include workload controls….caseload limits alone cannot keep public defenders from being overworked into ineffectiveness; two additional protections are required. First, a public defender must have the authority to decline appointments over the caseload limit. Second, caseload limits are no replacement for a careful analysis of a public defender’s workload, a concept that takes into account all of the factors affecting a public defender’s ability to adequately represent clients, such as the complexity of cases on a defender’s docket, the defender’s skill and experience, the support services available to the defender, and the defender’s other duties.” (at 9); and

“Making an accurate assessment of a defender’s workload requires observation, record collection and analysis, interviews with defenders and their supervisors, and so on, all of which must be performed quarterly or every six months over the course of several years to ensure that the Court’s remedies are being properly implemented.” (at 9-10).

NACDL also endorses the expansion of 42 U.S.C. §14141 (Violent Crime Control and Law Enforcement Act of 1994), federal authority to enforce the right to counsel in juvenile delinquency proceedings, beyond juvenile justice systems to include state compliance with constitutional safeguards in adult criminal cases, as pending Congressional legislation would provide.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.